Minister Simon Jolin-Barrette recently dropped a bombshell in the public space by calling for a “collective conversation” on the constitutional architecture of the Quebec state. In particular, he expressed the wish that infringements of rights by the laws of Quebec be assessed solely on the basis of the Quebec Charter rather than in the light of the two charters, as is currently the case.
Posted yesterday at 12:00 p.m.
The Minister also speaks of “parliamentary sovereignty”, of a rebalancing between individual and collective rights, of the need to amend the Quebec Charter or to derogate from it when the “moral contract” is at stake.
The transformations outlined affect the very definition of the powers of the state, as well as the relationships between the three branches of power. If the minister is serious in his intentions, he has a duty to elaborate his constitutional doctrine in a white paper. We already know law professors who will ask nothing better than to help him in this task.
“Weaken the system of checks and balances”
The minister would like Quebec to “govern itself solely according to the Quebec Charter”. What does this mean? Does he want to maintain a real form of control of the constitutionality of laws, or does he want to establish a system of pure parliamentary sovereignty under which elected officials themselves assess the impact of the laws they adopt on the rights of citizens?
In the abstract, a single charter of rights can of course suffice. In our constitutional order, however, the government can use the notwithstanding clause even before considering the constitutionality of laws.
In addition, a simple parliamentary majority allows the party in power to amend the Quebec Charter to make it compatible with the laws it adopts.
The Government of Quebec cannot prevent Canadian citizens from asserting their rights on the basis of the Canadian Charter. Even if he could do so, the Minister’s proposal would be inadmissible if it were not accompanied at least by a revision of the amending formula of the Quebec Charter and a tight framework for the power of derogation.
The reaction of the minister’s laudators so far is: let’s trust the Quebec parliamentarians; they are just as capable of defending rights as the judges, “appointed by Ottawa” moreover! Let’s be clear: “parliamentarians” means in practice “member of the Council of Ministers”, because “backbench MPs” generally have to toe the party line and the elected members of the opposition parties cannot block the decisions of a majority government.
The proposal thus amounts to entrusting the protection of fundamental rights to the executive power, thus weakening the judicial power. It is not being catastrophic to recall that this is precisely what the authoritarian governments in vogue are doing around the world.
My intention is not to say that the minister is secretly inspired by the Orbán government in Hungary, but rather to point out that the political and constitutional philosophy underlying his proposals would have the effect of weakening the system of checks and balances in our democratic institutions.
Realistic political understanding
However, if the most influential political philosophers of the modern period have given vital importance to institutional design and the separation of powers, it is because of their realistic understanding of human nature and political relations. Human beings are not angels and politics is made up of power relations, sometimes of domination. Unfortunately, there is no Quebec exceptionalism in this area. You don’t need to be as pessimistic as a Machiavelli to understand that a maxim like “we must trust the elect” shows an amazing frivolity.
It is therefore not lacking in respect for elected representatives to insist on the irreplaceable role of the norms and institutions of the rule of law in the realization of democratic principles. Pride is not a political philosophy.
It is telling that both liberal philosophers advocating the universality of human rights and republicans consider the definition and distribution of powers to be the central question of political theory. From Cicero to Hannah Arendt, via the drafters of the American Constitution and Tocqueville, the separation of powers has been thought of as one of the essential institutional means of political freedom and protection against tyranny. Too great a concentration of the powers to write the laws, to execute them and to judge them risks making us “lose everything”, wrote Montesquieu. A true Republican maintains that one should not rely on the moral greatness of political actors, but on institutions designed to reduce the risk of domination.
We must be grateful to Minister Jolin-Barrette for having understood that a “collective conversation” is necessary for any significant modification of our institutional architecture. Many of us will take part.